Baheti Education Trust vs Nemaram And Ors

This writ petition has been filed by the petitioner aggrieved against the order dated 3/2/2020 passed by the Addl. District Judge No.5, Jodhpur Metro,

whereby, the application filed by the petitioner under Order XVI Rule 6 CPC read with Section 151 CPC for summoning documents/record from the

Deputy Commissioner, Income Tax Department has been rejected.

The petitioner filed a suit seeking cancellation of sale deed and permanent injunction inter alia alleging that despite there being an agreement dated

28/6/2004 in favour of the plaintiff, the land in question was transferred by respondent no.1 through registered sale deed dated 13/5/2005 in favour of

respondent no.2; allegations were also made that the land in question has been transferred in favour of respondent no.2 as Benami, in fact the sale

deed has been got executed by respondent no.3 with a view to finish the right of the petitioner. Based on the submissions, the relief for cancellation

was sought.

The suit was contested by the respondent no.1 disputing the validity of the agreement and the averments regarding sale of the land in favour of the

respondent no.2 being Benami. Respondent nos. 2 and 3 filed a joint written statement disputing the averments made in the plaint taking pleas similar

to that of respondent no.1.

Based on the pleadings of the parties, the trial court framed as many as 13 issues, whereafter, one additional issue was framed and one issue was

amended.

The evidence of the parties was concluded and when the petitioner was afforded opportunity to lead rebuttal evidence, the present application was

filed under Order XVI Rule 6 CPC inter alia with the submissions that before the Income Tax Department in the proceedings initiated pertaining to the

transaction in question, the same has been found as ‘Benami’ and order for attachment of the property has also been passed, which

proceedings are relevant for disposal of the present proceedings. It was indicated that efforts were made to get the documents under Right to

Information Act, 2005 and on account of non-disposal of the application, an appeal was filed which was allowed, however, the authority has passed

the order rejecting the application and, therefore, the Deputy Commissioner, Income Tax Department be directed to produce the entire file pertaining

to said proceedings.

No reply to the application was filed, however, the same was contested.

The trial court by its impugned order came to the conclusion that the petitioner failed to point out the date, month and year when the order was passed,

in view of provisions of Section 4 of the Benami Transaction (Prohibition) Act, 1988 (‘the Act, 1988’) even if the transaction is found to be

Benami, the petitioner cannot get the relief and that the documents in question were not relevant. The trial court also came to the conclusion that the

suit was pending since the year 2005 and was at final stage and, therefore, it was not justified to summon the record and consequently rejected the

application.

It is submitted by learned counsel for the petitioner that the trial court was not justified in rejecting the application inasmuch as the petitioner has taken

a specific plea in the plaint about the transaction being Benami and as the documents/record of the Income Tax Department was in respect of the said

plea, it cannot be said that the documents were irrelevant and, therefore, the order impugned deserves to be quashed and set aside.

Submissions were made that reliance placed on Section 4 of the Act, 1988 was wholly irrelevant inasmuch as the restriction is for enforcement of any

right in respect of any property held Benami or defence based on any right in respect of any property held Benami and there is no restriction of third

party alleging and proving a transaction as Benami and, therefore, the order impugned deserves to be quashed and set aside.

It was submitted that the absence of date, month and year of the order is inconsequential as the record is maintained property wise.

Further submissions were made that once the petitioner has been accorded permission to lead rebuttal evidence, summoning of the documents under

the provisions of Order XVI Rule 6 CPC cannot be restricted on any count and, therefore, also the order impugned deserves to be quashed and set

aside.

Learned counsel for the respondent no.2 appearing on caveat vehemently opposed the submissions. It was submitted that the suit was filed in the year

2005, several applications have been filed from time to time by the plaintiff pertaining to framing of issues, amendment of issues etc., evidence of the

plaintiff was concluded on 8/3/2018 and defendant closed his evidence on 10/1/2020, whereafter, the present application has been filed. It was

submitted that the documents are wholly irrelevant and that the application made is not bonafide.

With reference to various issues framed, it was submitted that there was no occasion for the plaintiff to lead rebuttal evidence and, therefore, the

prayer made for summoning the documents was even otherwise baseless. It was emphasized that the petitioner did not move any application under

Order VII Rule 14 or Order XI CPC and straightaway made an application under Order XVI Rule 6 CPC, which cannot be countenanced and in fact

deserves to be rejected.

It was prayed that the petition deserves to be rejected.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The provisions of Order XVI Rule 6 CPC reads as under:

“6. Summons to produce document.- Any person may be summoned to produce a document, without being summoned to give evidence, and any

person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced

instead of attending personally to produce the same.â€​

A perusal of the above provision, which forms part of Order XVI deals with Summoning and Attendance of Witnesses, would reveal that any person

may be summoned to produce a document without being summoned to give evidence and that the document can be produced through someone else

also and it is not necessary that the person directed to produce the document must produce the same personally. The provision as such does not

provide for any precondition for passing of order thereunder, however, the only apparent condition which can be deciphered is that the document must

be relevant for adjudication of the dispute.

The facts are not in dispute, wherein, the petitioner has made a specific allegation in the plaint, rather the same is one of the basis for filing the suit,

that the land in question has been transferred Benami in favour of respondent no.2 and that respondent no.3 was the real owner. The said allegation

has been denied by respondent nos.1 to 3. It is interesting to note that the defendant nos. 2 and 3 have filed a joint written statement.

The application was filed at the stage of rebuttal evidence based on the fact that the Income Tax Department had initiated action qua the land in

question under the Act of 1988 and had attached property, which information came to light on account of a communication written by the office of

Deputy Commissioner, Income Tax Department to Registration Department requiring the department not to register the transaction qua the land in

question, which documents have been produced by the petitioner, annexed to the application filed under Order XVI Rule 6 CPC (Annex.6) and

attempts made under Right to Information Act having failed, apparently the application was filed for summoning of the documents before leading

rebuttal evidence.

The trial court by its order impugned, on the one hand came to the conclusion that in view of provisions of Section 4 of the Act, 1988 the petitioner

could not get any benefit despite action taken by the Income Tax Department, it came to the following conclusion for rejection of the application:

“

, ।

2005 , ।

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The conclusion of the trial court pertaining to the irrelevance of the documents is apparently against the record inasmuch as, as already noticed, the

plaint is inter alia based on the allegation pertaining to transaction being Benami and irrespective of the fact as to whether the same would have any

implication ultimately qua the relief claimed in the suit, the petitioner essentially is entitled to lead evidence qua the said fact and once the documents

sought to be summoned pertain to the said aspect, the rejection by indicating the same as irrelevant cannot be sustained.

The other finding based on the provisions of Section 4 of the Act, 1988 also has no substance in view of the fact that the provision restricts the right of

those seeking enforcement or defend an action based on same being Benami, however, the third parties are not prevented from alleging and/or proving

the said aspect and, therefore, the rejection on this count also cannot be sustained.

Various submissions made by learned counsel for the respondent pertaining to delay in the suit, the fact that the plaintiff is not entitled to lead rebuttal

evidence and that provisions of Order VII Rule 14 and Order XI CPC were not followed, apparently have no substance inasmuch as once the court

has permitted leading of rebuttal evidence, the defendant cannot preempt the fact as to what evidence can be or would be led by the plaintiff.

The provisions of Order VII Rule 14 and Order XI CPC also have no application inasmuch as neither the documents are available with the plaintiff

nor the same are claimed to be available with the defendants and, therefore, the fact that no application under the provisions of Order VII Rule 14 and

Order XI CPC was filed, would have no implication whatsoever.

So far as the observations made by the trial court, though the same has not been made basis for rejection of the application, that the particulars of the

documents have not been indicated, suffice it to observe that once the requisition as prayed by the petitioner is issued, the department has to respond

on the said aspect and same also in view of submission that record is maintained property wise, cannot be preempted at this stage.

In view of the above discussion, the writ petition is allowed. The order dated 3/2/2020 passed by the trial court is quashed and set aside. The

application filed by the petitioner under Order XVI Rule 6 CPC is allowed. The trial court is directed to summon the documents/record as prayed by

the petitioner in its application under Order XVI Rule 6 CPC from the office of Deputy Commissioner, Income Tax Department, Jaipur.